JMWP18/14
LaurenceBoissondeChazournes
ResponsibilityofInternationalOrganizations
inFinancialPartnerships:
SomeRemarks
NewYorkUniversitySchoolofLaw
JeanMonnetWorkingPaperSeries
Cover:Sisters,GillesWeissman,France
 
 
THE JEAN MONNET PROGRAM
J.H.H. Weiler, Director
 
 
 
 
 
Jean Monnet Working Paper 18/14
 
 
 
 
Laurence Boisson de Chazournes
 
 
 
 
 
 
 
 
Responsibility of International Organizations
in Financial Partnerships:
Some Remarks
 
 
 
 
 
 
 
 
 
 
NYU School of Law New York, NY 10011
The Jean Monnet Working Paper Series can be found at
www.JeanMonnetProgram.org
All rights reserved.
No part of this paper may be reproduced in any form
without permission of the author.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
ISSN 2161-0320 (online)
Copy Editor: Danielle Leeds Kim
© Laurence Boisson de Chazournes 2014
New York University School of Law
New York, NY 10011
USA
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Publications in the Series should be cited as:
AUTHOR, TITLE, JEAN MONNET WORKING PAPER NO./YEAR [URL]
Responsibility of International Organizations in Financial Partnerships
1
 
 
 
 
RESPONSIBILITY OF INTERNATIONAL ORGANIZATIONS
IN FINANCIAL PARTNERSHIPS:
SOME REMARKS
 
By Laurence Boisson de Chazournes

 
 
 
Abstract
 
Partnerships between international organizations serve a practical function in
coordinating institutional actions and supporting mutually shared objectives. However,
international law has thus far struggled to address key issues that arise in such
scenarios, particularly in the allocation of legal responsibility among these actors. This
contribution outlines the complex character of resource-based collaborations
established by international financial institutions. The author analyzes such
partnerships in light of both their constitutive legal instruments and the International
Law Commission’s 2011 Draft Articles on the Responsibility of International
Organizations, ultimately advocating for greater synergy between these rules and the
activities such relationships entail in practice.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

Professor of International Law, University of Geneva School of Law; Senior Jean Monnet Fellow (2012-
2013), New York University School of Law Laurence.BoissonDeChazournes@unige.ch
The present contribution builds on L. Boisson de Chazournes, ‘United in Joy and Sorrow: Some
Considerations on Responsibility Issues under Partnerships among International Financial Institutions’,
in M. Ragazzi (ed.), Responsibility of International Organizations. Essays in Memory of Sir Ian Brownlie
(Leiden/Boston: Martinus Nijhoff, 2013), 213.
2
 
 
1. Introductory remarks
 
In the sprawling system of global governance, collaboration is widely sought to curb
inefficiencies in resource allocations. That gives rise to complex and fast-changing
bundles of relationships. Partnerships between international organizations are one of
the best examples of this: multi-purpose and flexible, they have come to represent an
ideal tool to accommodate pragmatic needs flowing from the common or parallel action
of organizations.
That international law struggles to apprehend such manifestations of
 
collaboration is palpable when one takes up the topic of responsibility. The
International Law Commission tried to grapple with this problem in the articles on the
responsibility of international organizations it adopted in 2011.1 From the outset, the
acknowledgement that an international organization can incur responsibility in
connection with a conduct other than its own, particularly in the cases spelt out in
chapter IV of the articles,2 ushers in a concept of responsibility more balanced and
potentially more ambitious than its equivalent in the field of State responsibility. It is
more balanced because derived responsibility stands on an equal footing with
responsibility for one’s own acts, while this is a mere exception in the articles on State
responsibility, which the International Law Commission had adopted in 2001.3 It is also
more ambitious because, in trying to frame the relational networks of international
organizations, the 2011 articles bring the topic of shared responsibility to the forefront.
Yet, the solutions offered by these articles have only stirred mild enthusiasm.
Some international organizations have voiced doubts on whether the provisions in
chapter IV will have a true grip on reality;4 others have conversely warned about the risk
 
 
 
1 Responsibility of International Organizations (A/RES/66/100). See Annex I for the text of those
articles referenced throughout this essay.
2 See particularly articles 1(1) and 14-19. Aside from chapter IV-type of situations, the Commission
stated: ‘Another case in which an international organization may be held responsible is that of an
internationally wrongful act committed by another organization of which the first organization is a
member.’ ‘Draft articles on the Responsibility of International Organizations, with commentaries 2011’
[ARIO Commentaries], Report of the International Law Commission on the Work of its Sixty-third
Session, Gen. Ass. Off. Recs., Sixty-sixth Session, Supp. No. 10 (A/66/10), 69-172, at 72, para. (4).
3 Article 1 on State responsibility speaks of responsibility for ‘every international wrongful act of a
State’, contrary to the Special Rapporteur’s proposal that ‘every international wrongful act by a State gives
rise to international responsibility’. (R. Ago, ‘Second report on State responsibility’ (A/CN.4/233), YILC
(1970), vol. II, 177-97, at 187, para. 29.)
Responsibility of International Organizations in Financial Partnerships
3
 
 
 
 
that some articles may have a chilling effect on the activities of international
organizations.5 Doctrinal voices are also sceptical, pointing out that, notwithstanding
the improvements over the 2001 articles, responsibility in multi-actor scenarios remains
rather uncertain.6
Indeed, a glance at the commentaries to chapter IV of the articles on the
 
responsibility of international organizations suffices to demonstrate the close kinship
with their correlative provisions in the articles on State responsibility,7 the only novelty
being responsibility of an international organization for the circumvention of its own
obligations through decisions or authorisations implemented by its members.8 Such a
strong reliance on the 2001 articles transposes into the 2011 articles the uncertainties
riddling States’ derived responsibility. Additionally, the Commission’s rules do not
address the possible consequences of acts adopted in contexts other than membership.
The question therefore arises how to situate relations between international
organizations and their members other than through membership within a general
regime of responsibility.
Here, partnerships between international organizations offer an interesting angle
of analysis. The broad range of circumstances they cover permits testing the link among
the exercise of normative power, the implementation of operational activities, and
the occurrence of wrongful acts in a framework distinct from membership and yet
of a certain degree of formality and of continuity over time. That seems a promising
approach to clarify the conceptual underpinnings of the derived responsibility of
international organizations and, more generally, the scope of their shared responsibility.
The analysis will focus on partnerships set up by international financial institutions
 
4 Concerning draft article 14 (direction and control), which was later incorporated into the 2011
Draft Articles as article 15, the UN Secretariat was of the view that ‘the draft Article has little practical
effect for the Organization.’ Responsibility of international organizations. Comments and observations
received from international organizations (A/CN.4/637/Add.1), 20.
5 On draft article 13 (aid and assistance), which was later incorporated into the 2011 Draft Articles
as article 14, the World Bank commented that the provision ‘is worrisome and may create a dangerous
chilling effect for any international financial institution providing economic assistance to eligible
borrowers and recipients.’ Responsibility of international organizations. Comments and observations
received from international organizations (A/CN.4/637), 27.
6 On the hurdles posed by the Commission’s articles with respect to shared responsibility, A.
Nollkaemper and D. Jacobs, ‘Shared Responsibility in International Law: A Conceptual Framework’,
Amsterdam Law School Research Paper No. 2011-17.
7 Articles 14-16, ARIO Commentaries, 103-7.
8 Article 17, ARIO Commentaries, 107-10; and G. Gaja, ‘Third report on responsibility of
international organizations’ (A/CN.4/553), para. 29.
4
 
 
(IFIs) – which have voiced strong concerns about the potential effects of chapter IV–
and it will touch upon the circumstances for engagement of responsibility, while leaving
aside issues concerning implementation.
 
 
2. Partnerships among IFIs: a Vector for Institutional Emulation
Partnerships among IFIs have grown out of a need for effectiveness in the pursuance of
a wide range of activities and objectives.9 IFIs may receive logistical, material, or
financial aid from each other for operational purposes, exchange information and
participate in their respective fora of discussion, or establish institutional arrangements
to implement a given activity and provide a framework for common goals. Flexibility
and low costs of establishment have driven the growing success of partnerships in
domains such as environmental protection and sustainable development.
Financing is a crucial issue in such domains and is usually pursued through ad
 
hoc arrangements, ranging from full-fledged formal agreements,10 informal instruments
such as Memoranda of Understanding (MOUs),11 to agreements incorporating the
standard conditions adopted by one organization.12 Regardless of their legal nature,
these instruments combine provisions of a more contractual type, e.g. on termination
or arbitration with typical administrative law mechanisms, such as monitoring and
reporting on project implementation. These similarities show that partnership
agreements represent an important vector of emulation and procedural
 
 
 
9 L. Boisson de Chazournes, ‘Les relations entre organisations régionales et organisations
universelles’, Collected Courses of the Hague Academy of International Law, vol. 347 (2010)
(Leiden/Boston: Martinus Nijhoff, 2011), 79-406, at 346, stating: ‘While concern for pragmatism
demands flexibility to render cooperation between the UN and regional organizations more efficient, the
diverse relations between organizations creates more complexity, at times obscuring their legal profiles.’
(Original in French; translation by the author.)
10 See, for example, the Co-financing Agreement between the Nordic Development Fund, the African
Development Bank, and the African Development Fund (1995), at <www.afdb.org>.
11 See, for example, the MOU on an Enhanced Strategic Partnership for Cooperation in the African
Countries between the European Commission, the European Investment Bank, and the African
Development Bank (2005), at <www.afdb.org>. See also the MOU between the European Bank for
Reconstruction and Development, the African Development Bank and the African Development Fund
(2011), at <www.afdb.org>.
12 See, for example, the World Bank Standard Conditions for Grants Made by the World Bank out of
Various Funds (2010), at <www.worldbank.org>.
Responsibility of International Organizations in Financial Partnerships
5
 
 
 
 
harmonisation among IFIs.13 Emulation helps, in fact, to reduce transaction costs and,
in turn, to facilitate collaboration among IFIs.
Financing may also be foreseen in the constitutive agreements of international
organisations. For instance, the statute of the International Development Association
(IDA), a member of the World Bank Group, provides a channel for preferential financing
to ‘a public or regional organization’.14 On this basis, the IDA has granted loans at
privileged rates to the West African Development Bank (WADB) and to the Caribbean
Development Bank.15 For example, the IDA in 2004 approved funding for the WADB as
part of its efforts to develop financial infrastructure and economic integration in the
region.16
Partnerships are also the building blocks of more institutionally complex
multilateral schemes. Trust funds for concessional financing are a good example.
Conceived as a less burdensome alternative to the proliferation of autonomous
organizations,17 most trust funds are set up jointly by two or more international
organizations and administered by one of them, acting as trustee. In this context, the
Global Environment Facility (GEF) represents a rather unique case of institutional
engineering.18 Established in 1991 (and restructured in 1994 with the World Bank acting
as trustee, and the latter, together with the United Nations Development Programme
(UNDP) and UNEP, acting as implementing agencies), it provides financing to
developing countries for projects dealing with the protection of the global environment
(including, inter alia, climate change and biodiversity issues). Moreover, institutions
 
13 L. Boisson de Chazournes, ‘Partnerships, Emulation, and Coordination: Toward the Emergence of
a Droit Commun in the Field of Development Finance’, H. Cissé et al. (eds.), The World Bank Legal
Review, vol. 3 (International Financial Institutions and Global Legal Governance) (Washington, DC,
2012), 173-87, at 179-82.
14 See IDA Articles of Agreement, Article V, Section 1€,
at
<http://siteresourcesworldbank.org/IDA/Resources/ida-articlesofagreement.pdf>.
15 See I. Shihata, The World Bank Legal Papers (The Hague: Martinus Nijhoff, 2000), p. 812.
16 See L. Boisson de Chazournes, ‘Les relations entre organisations regionals et organisations
universelles’, op. cit., p. 201.
17 G. Droesse, ‘Organizational Structures, Institutional Frameworks and Decisions-Making
Procedures of Multilateral Concessional Financing’, Id. (ed.), Funds for Development (Manila, 2011), 59-
295.
18 L. Boisson de Chazournes, ‘The Global Environment Facility (GEF): A Unique and Crucial
Institution’, Review of European Community and International Environmental Law, vol. 14 (2005), 193-
201.
6
 
 
such as the African Development Bank (AfDB), the Asian Development Bank (ADB), the
European Bank for Reconstruction and Development (ERDB), and the Inter-American
Development bank (IDB) can act as executing agencies, thus being directly involved
with projects of the GEF.
In addition to the above-mentioned types of partnerships, IFIs have engaged in
 
further forms of collaboration, such as the Heavily Indebted Poor Countries (HIPC)
Initiative, set up by the International Monetary Fund (IMF) and the World Bank in
1996. This initative was established to avoid situations in which poor countries may
have to grapple with an unsustainable debt. In 2005, the objectives of the HIPC were
reiterated through the creation of the Multilateral Debt Relief Initiative (MDRI), a G8promoted
programme taken in view of the UN Millennium Development Goals.19 In
practice, the management of this initiative can be seen as fostering partnerships
between international organizations, in particular between universal and regional
organizations such as the Inter-American Development Bank (IDB).20
 
 
3. Responsibility Issues under IFIs’ Partnerships
 
a. Issues of responsibility
 
Partnerships formed by IFIs may seem of dubious relevance for articulating the
conceptual underpinnings of a general regime of responsibility. Admittedly, the
diversity one faces discourages against venturing into more than case-specific
considerations, whereas the lack of practice on responsibility for partnership-related
activities risks confining a reflection on the matter to a purely theoretical discussion.
Yet, the tendency to reproduce certain patterns of collaboration out of institutional
emulation pleads for adopting a more than case-based approach towards collaboration
through partnerships. In any event, the IFIs’ difficulty in translating the articles on the
responsibility of international organizations into their everyday operations
demonstrates the need for a theoretical approach that may be capable of linking the
articles to the overarching legal framework of partnerships.
 
 
 
19 See L.F. Guder, The Administration of Debt Relief by the International Financial Institutions: A
Legal Reconstruction of the HIPC Initiative (Berlin, 2009).
20 See L. Boisson de Chazournes, Les relations entre organisations regionals et organisations
universelles, op. cit., p. 203.
Responsibility of International Organizations in Financial Partnerships
7
 
 
 
 
To this end, the model of derived responsibility comes to mind first, but that of
independent responsibility also deserves attention. Such paradigms, in fact,
complement and eventually overlap one another to grasp the many modes of
partnership-based collaboration. The shared responsibility of partner international
organizations could arise from a single wrongful act attributable to more than one
organization, from the sum of the distinct, individual wrongful acts of two or more
organizations, as well as from the contribution of one international organization to the
wrongful conduct of another. We thereby consider what is ‘shared’ to characterize the
responsibility of multiple organizations for a certain injury related to a partnership. Part
of the analysis here will thus assess what room is available in the Commission’s articles
for the latter conception of shared responsibility.
Before doing so, however, one must reflect on the instruments establishing
financial partnerships. Could they provide the direct source of the obligations, which, if
breached, trigger the responsibility of partner international organizations? The answer
is clearly in the affirmative if the instruments are binding in international law. However,
that is rarely the case: most partnerships are created by MOUs, although the mere
choice of terms does not imply the parties’ lack of intent to be bound.21 A somewhat
unorthodox option would be to qualify such MOUs as ‘rules of the organisations’ under
article 2(b) of the articles on the responsibility of international organizations. There is
room to debate whether the broad formulation of article 2(b) can accommodate such a
line of reasoning,22 but the true problem is that, were such acts deemed to have an
international legal character, it would overstretch the scope of the obligations defining
the responsibility of international organizations.23
Nevertheless, the MOUs constitutive of partnerships can affect responsibility for
reasons other than their binding nature. First, notwithstanding the soft law character of
some MOUs, certain provisions may still give rise to obligations for an international
 
 
21 According to the International Law Commission, MOUs could qualify as ‘treaties in simplified
form’: Report of the International Law Commission on the Work of its Eighteenth Session
(A/6309/Rev.1), YILC (1966), vol. II, 172-363, at 188, para. (2).
22 Article 2(b) on the responsibility of international organizations refers to any act ‘adopted in
accordance with those instruments [the constituent instrument, decisions and resolutions of an
international organization]’.
23 C. Ahlborn, ‘The Rules of the Organizations and the Law of International Responsibility’, 8 IOLR
(2011), 397-482, at 405-33.
8
 
 
organization. The distinction between the soft law character of the instrument and that
of the negotium is in place,24 provided the MOU does not explicitly exclude any
implications in terms of responsibility.25 Second, if conceived as part of the internal legal
order of international organizations, MOUs can still entail factual effects in the
international legal order. Quite importantly, they can set the stage to assess the behavior
of an international organization, while the source of obligation allegedly breached
resides elsewhere. More specifically, they allow grasping the mutual expectations related
to the relational context of the partnership. That, in turn, provides guidance in
determining issues of attribution of conduct and responsibility, or of the latter only.
 
 
b. Independent responsibility
 
In the broad panorama of partnerships, the category of independent responsibility may
prove valuable to address one of the most common forms of collaboration among IFIs,
namely project co-financing. Under a legally binding framework, the conditions for
engaging responsibility would much resemble those the International Court of Justice
had to grapple with in the East Timor case.26 The allegedly wrongful conduct had
occurred in conjunction with a joint exploitation regime of East Timor’s resources. The
Court’s decision to proceed on the merits of the case implies it deemed the respondent
potentially responsible for its conduct, notwithstanding the contribution of another
actor to the wrongful act. This supports a conceptual division of collaborative conduct
that imputes responsibility to each of the partner international organizations.27 The case
 
 
24 G. Abi-Saab, ‘Eloge du “droit assourdi”: quelques réflexions sur le rôle de la soft law en droit
international contemporain’, Nouveaux itinéraires en droit: hommage à François Rigaux (Brussels, 1993),
59-68, at 66.
25 For example, section 9.1 of the MOU between the European Bank for Reconstruction and
Development, the African Development Bank and the African Development Fund. See also article XI of
the MOU between the African Development Bank, the African Development Fund and UNIDO, at
<www.afdb.org>.
26 East Timor (Portugal v. Australia), Judgment, ICJ Reports 1995, 90. (See also the dissenting
opinion by Judge Weeramantry, at 172.)
27 Concerning State responsibility, the Special Rapporteur Roberto Ago also stated that, if ‘the
actions constituting participation by a State in the commission of an internationally wrongful act by
another State constituted a breach of an international obligation in themselves, they would on that
account already engage the international responsibility of the State which performed those actions,
irrespective of any consequences that might follow from the part taken in the internationally wrongful act
of another State.’ (‘Seventh report on State responsibility’ (A/CN.4/307), YILC (1978), vol. II, Part One,
31-60, at 52-3, note 99.) See also I. Brownlie, System of the Law of Nations: State Responsibility, Part 1
(Oxford, 1983), 190.
Responsibility of International Organizations in Financial Partnerships
9
 
 
 
 
for doing so is even stronger when co-financing rests upon a looser basis: if the shared
character of collaboration is weak, nothing prevents reliance on independent
responsibility.
Reasoning along these lines also makes room for dual/multiple attribution. That
does not seem at odds with the conceptual underpinnings of responsibility,28 especially
the assumption that control over a wrongful act can rest only upon one subject. It is
uncontested that each partner organization fully controls its contribution to financing.
The thorny point is rather whether one is willing to concede that the principles on
attribution hold the same notwithstanding that the wrongful conduct arises from the
joint, and therefore intertwined, action of its co-actors. In truth, the conceptual hurdles
one may think of are related to the implementation, as opposed to the engagement, of
co-authors’ responsibility. If independent responsibility seems possible in the case of cofinancing,
the de facto shared responsibility ensuing from dual attribution satisfies the
criteria of article 48 on the responsibility of international organizations, which grounds
joint responsibility upon the occurrence of a single wrongful act.
Multiple wrongful acts can arise, instead, under a further scenario that one can
imagine in terms of independent responsibility for looser schemes of collaborative
action. For instance, certain partnership agreements identify the implementation of the
Poverty Reduction Strategy Papers (PRSP) as an area of collaboration, notably through
parallel disbursements.29 If an outcome contrary to the respective obligations of partner
organizations were to occur, the injured party should be able to bring a claim against
partner organizations, notwithstanding that the PRSP provided an overall working
framework rather than a true scheme of collaborative action. As pointed out at the
outset, partner organizations could incur de facto shared responsibility with respect to a
single outcome related to a partnership-activity, but the latter situation would not
qualify as joint responsibility for the purposes of the Commission’s articles.
 
 
 
28 As the Commission’s commentary clarified, ‘dual or even multiple attribution of conduct cannot
be excluded’ (ARIO Commentaries, 83). It has also been argued that nothing in the articles ‘prevents such
contemporaneous application of the rules (on attribution) to more than one subject in international law’.
(F. Messineo, ‘Multiple Attribution of Conduct’, SHARES Research Paper No. 2012-11.)
29 For example, point 2 of ‘Priority areas of cooperation’ in the MOU between the European
Development Bank, the European Commission and the African Development Bank (2005), at
<www.afdb.org>.
10
 
 
c. Derived responsibility
 
A further option to frame the relationship between two or more partner organizations
under the articles on the responsibility of international organizations is to attribute
responsibility to an organization in connection with the wrongful acts of others. The
provisions in question – namely, articles 14, 15 and 16 – have not generated much
debate, the assumption being widely shared that international organizations could incur
responsibility without being attributed the acts of other States or organizations, much in
the same manner as States.30 Yet, despite an apparent consensus, derived responsibility
is hardly straightforward. The circumstances under which it arises and its consequences
have largely remained underdeveloped, in the shade of the dominant paradigm of
independent responsibility.31
Several issues, which are controversial in the context of State responsibility,
riddle in turn the Commission’s articles on the responsibility of international
organizations. The lack of a principle common to the categories of derived responsibility
is one such issue. Factual control over the conduct of the wrongdoer seems crucial to
direction and control (article 17) as well as coercion (article 18), but that hardly holds for
aid and assistance (article 16). Whereas significance of contribution could replace
control, one may reasonably object that knowing participation in the wrongful act of
another should suffice to trigger responsibility.32 Regardless of one’s position on this
point, the link between the conduct of the third party and wrongfulness remains vague,
with the risk of placing the application of responsibility at odds with its premises.33 That
the conditions of derived responsibility rest on a shaky basis also affects the
implementation of joint responsibility. As noticed by some commentators,34 article 47 –
which requires responsibility for the same internationally wrongful act – encompasses
cases of aid or assistance only if considerably overstretched; the conduct of the aiding or
assisting subject is, in fact, distinct from that of the wrongdoer.
 
30 G. Gaja, ‘Third report on the responsibility of international organizations’ (A/CN.4/553), 11.
31 According to Ian Brownlie, the principles of allocation of responsibility among multiple actors are
‘indistinct’. (Principles of Public International Law (7th edn., Oxford, 2008), 457.)
32 A. Reinisch, ‘Aid or Assistance and Direction and Control between States and International
Organizations in the Commission of Internationally Wrongful Acts’, 7 IOLR (2010), 63-77, at 71-2.
33 Under article 18, the coercing subject could incur responsibility even in the absence of any
wrongful act. (J. Fry, ‘Coercion, Causation, and the Fictional Elements of Indirect State Responsibility’, 40
Vanderbilt Journal of Transnational Law (2007), 611-41, at 629-38.)
34 A. Nollkaemper and D. Jacobs, ‘Shared Responsibility’, 48-55.
Responsibility of International Organizations in Financial Partnerships
11
 
 
 
 
When moving to the 2011 articles, the above hurdles become even more serious
due to the structural differences between States and international organizations. Let us
start from the crucial issue of control. The reference to the articles on State
responsibility, which enshrines a factual type of control, proves tricky when measured
against the powers of international organizations. Tellingly enough, the UN Secretariat
has expressed doubts that ‘a binding decision could constitute “direction and control”
within the meaning of Draft Article 14’ and that a resolution could impose the
commission of a wrongful act meeting the conditions for coercion.35 Moreover, stressing
factual control may turn derived responsibility for ‘direction and control’ into direct
responsibility for the acts effectively controlled by an international organization.36 As to
aid and assistance, the risk exists of its overstretching in light of the manifold
contribution organizations provide to one another, coupled with the difficulty of
tailoring a test of importance of contribution when it comes to normative decisions.
Finally, the lack of clarity as to the subjective elements of knowledge and fault further
blurs the circumstances of derived responsibility.
It is not much of a surprise, then, that the chapter IV provisions of the 2011
articles have met with concern among IFIs, notably the World Bank and the IMF. Such
concern has nonetheless considerably evolved over the eight-year study period before
the Commission. At first, the IMF maintained that only ‘assistance that is earmarked for
the wrongful conduct could qualify as aid and assistance’. Lending by the IMF could
never prove essential nor contribute significantly to wrongful conduct because ‘a
member always has an effective choice not to follow the conditions on which IMF
assistance is based… and IMF financing is not targeted to particular conduct.’37 Along
the same lines, the IMF also pointed out that ‘a legally binding decision upon its
 
 
 
 
35 Responsibility of international organizations. Comments and observations received from
international organizations’ (A/CN.4/637/Add.1), 20-1. On coercion, the UN Secretariat stated that ‘the
probability of adoption of a binding resolution which would meet the conditions of draft article 15 –
namely, a resolution not only binding a State to commit an international wrongful act, but through
“coercion” having the effect of force majeure – is virtually non-existent’ (at 21).
36 A. Reinisch, ‘Aid or Assistance’, 76.
37 The IMF added that the ‘fungible character of financial resources also means that IMF financial
assistance can never be essential, or contribute significantly, to particular wrongful conduct of a member
State, for the purposes of this draft article 13.’ Responsibility of international organizations. Comments
and observations received from international organizations (A/CN.4/582), 10-11.)
12
 
 
members is not the same as direction and control’.38 In the latest comments submitted
to the Commission, the World Bank took a somewhat milder stance. Concerning aid and
assistance, the World Bank invited the Commission to recognize the negative
presumption that ‘organizations providing financial assistance do not, as a rule, assume
the risk that assistance will be used to carry out an international wrong’.39 On ‘direction
and control’, it broached the operative relationship with a borrower to argue that,
whether or not control is completely ceded, the World Bank ‘engages at most in the
exercise of oversight. Oversight is neither “control” nor “direction” though.’40
To be sure, scattered and organization-specific as they are, the comments by
international organizations are to be put in perspective. The Special Rapporteur himself
has done so by emphasizing the difference between general lending to a State or another
international organization and project financing with some control over the activities of
the borrowing subject, the latter case being more germane to the potential responsibility
flowing from IFIs’ lending policies.41 Still, the IFIs’ comments show what aspects are of
greater relevance to their specific activities, particularly in light of the normative hurdles
discussed above. The framework of partnerships seems ideal for addressing these
aspects.
Let us consider the issue of aid and assistance. The IMF’s stance recalled above
has more to do with the case of general lending than project financing. Yet, the idea that
a contribution needs to be ‘essential or significant’ to trigger responsibility for acts to
which such contribution is made finds place in the Commission’s commentaries.42
Whereas significance of contribution is hardly amenable to a standard criterion of
assessment, partnership agreements may nonetheless offer valuable clues as to their
covered domain. A good example is preferential financing: the conditions offered in
such contexts are most probably determinant in implementing a project or engaging in a
given activity, which would suffice to presume the test of significance is satisfied. More
generally, by establishing the features of collaboration among international
 
 
38 Ibid., 11.
39 Responsibility of international organizations. Comments and observations received from
international organizations (A/CN.4/637), 28.
40 Ibid.
41 G. Gaja, ‘Third report on responsibility of international organizations’ (A/CN.4/553), 11, note 35.
42 ARIO Commentaries, 104.
Responsibility of International Organizations in Financial Partnerships
13
 
 
 
 
organizations, partnership agreements help apprehend significance of contribution in
terms of a relational rather than quantitative context.
Concerning the subjective circumstances of aid and assistance, the position of the
World Bank is not only compatible with the 2011 articles,43 but also insightful in the
context of project financing through partnerships. A generic knowledge of the
circumstances of financing may not seem enough to reverse the presumption against
assumption of risk for a possibly wrongful act; some proof of intent is necessary to that
end.44 When assessed in the context of partnerships, some further considerations prove
relevant. For instance, co-financing agreements often foresee mechanisms of
consultation and monitoring.45 If the parties abide by their duty to exchange
information concerning the implementation of the co-financed project, each of them can
keep abreast of the injurious developments potentially arising from the project. In such
conditions, the partner organizations possess, at least in principle, enough knowledge to
argue that maintaining the contractual relationship concerning the injurious project is
tantamount to willingly providing aid and assistance to a wrongful act. However, that
does not hold when the instrument establishing a partnership only foresees a generic
exchange of information among the parties.
Besides aid and assistance, IFIs also tackled direction and control in their
comments. The position of the IMF, claiming that its normative acts never entail
direction and control, deprives the latter category of almost any utility and is therefore
of little help in deciding whether derived responsibility arises under the articles on the
responsibility of international organizations. The World Bank, instead, touched upon
issues of control from a more operational perspective when it excluded that oversight,
the only form of control allegedly exercised by the World Bank, could trigger derived
 
 
43 M. Ragazzi, ‘The IlC Draft Articles and International Financial Institutions: Select
Considerations’, 105 ASIL Proceedings (2011), 353-6.
44 The European Commission noted that as ‘the threshold for the application of the rule seems low
(knowledge) one should add in the commentary some limitative language (intent)’. (Responsibility of
international organizations. Comments and observations received from international organizations
(A/CN.4/637), 27.)
45 For example, article IV of the Co-financing Agreement between the Nordic Development Fund,
the African Development Bank and the African Development Fund provides that the parties ‘shall
promptly inform each other of any condition or development which, in its opinion, is likely to interfere
with the implementation or the successful completion of a project or programme being co-financed
hereunder and shall consult with each other regarding the appropriate remedial action to be taken by the
parties.’ See also Sections 2.06 and 2.08 of the World Bank Standard Conditions for Grants.
14
 
 
responsibility. To be sure, the World Bank’s position finds support when one combines
the commentaries on the 2001 articles with those of the 2011 articles:46 oversight is in
principle not to be identified with either direction or control. Yet, one must also put that
in context. Oversight is a term of art, which does not necessarily cover the different
types of control IFIs may exercise when involved in a partnership. The example of
development funds with separate legal personality and administered by an IFI is telling.
The decisions of the trustee imply a degree of control over an activity formally
implemented through the fund and its executing agencies. Incidentally, such a scenario
finds support also in the articles on the responsibility of international organizations,
hinting at the possibility of a joint exercise of direction and control.47
 
 
4. Conclusion
 
The means through which international organizations jointly carry out their activities
are rarely the subject of reflection. The reason is, in part, that an analysis of such
complex collaborative settings proves hard as long as some crucial features of the
general regime of responsibility remain controversial. In this connection, one may think
in particular of the scope of the obligations binding on international organizations and
the place of the internal rules of the organizations in relation with them. Other major
issues – such as the possibility of multiple attribution, the circumstances of derived
responsibility as well as the defining criteria of joint responsibility – either have been
broached at too high a level of abstraction or are still underdeveloped. Hence, a shift in
the focus of attention seems necessary. To make the 2011 articles operational in this
respect, one needs to identify the recurrent features of collaboration among
international organizations and thus to devise gateway concepts between the articles
and IFIs’ activities. We have attempted to do so by referring to a number of partnership
agreements in conjunction with the main scenarios of both independent and derived
responsibility. Such an approach also brings to light the close link between the
mechanisms foreseen to ensure accountability under a partnership agreement and
 
 
 
 
 
46 ARIO Commentaries, 106.
47 Ibid., 105-6.
Responsibility of International Organizations in Financial Partnerships
15
 
 
 
 
issues of responsibility under general international law.48 In the case of aid and
assistance, the implications stemming from the monitoring procedures foreseen under
financing agreements are particularly telling. Incidentally, although we did not explore
this aspect, provisions of a contractual character may also help to clarify joint
responsibility. To be sure, more practice is yet to be analyzed and further systematized.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
48 P. Klein, ‘Médiateurs et Mécanismes Informels de Contrôle des Organisations Internationales : Entre
Accountability et Responsibility’, J. Crawford and S. Nouwen (eds.), Select Proceedings of the European
Society of International Law (Cambridge, 2012), 217-29.
16
 
 
Annex I
 
 
Draft articles on the responsibility
of international organizations 2011
Copyright © United Nations 2011
 
 
Adopted by the International Law Commission at its sixty-third session, in 2011,
and submitted to the General Assembly as a part of the Commission’s report
covering the work of that session (A/66/10, para. 87). The report appears in
Yearbook of the International Law Commission, 2011, vol. II, Part Two.
 
 
Responsibility of international organizations
Part One
Introduction
 
Article 1
Scope of the present draft articles
 
1. The present draft articles apply to the international responsibility of
an international organization for an internationally wrongful act.
 
2. The present draft articles also apply to the international responsibility of
a State for an internationally wrongful act in connection with the conduct of
an international organization.
 
Article 2
Use of terms
 
For the purposes of the present draft articles,
 
(a) “international organization” means an organization established by
a treaty or other instrument governed by international law and possessing its
own international legal personality. International organizations may include as
members, in addition to States, other entities;
 
(b) “rules of the organization” means, in particular, the
constituent instruments, decisions, resolutions and other acts of the
international organization adopted in accordance with those instruments, and
established practice of the organization;
 
(c) “organ of an international organization” means any person or
entity which has that status in accordance with the rules of the organization;
 
(d) “agent of an international organization” means an official or other
person or entity, other than an organ, who is charged by the organization
with carrying out, or helping to carry out, one of its functions, and thus through
whom the
organization acts.
Responsibility of International Organizations in Financial Partnerships
17
 
 
 
 
Part Two
The internationally wrongful act of an international organization
 
[…]
 
Chapter IV
Responsibility of an international organization in connection with the
act of a State or another international organization
 
Article 14
Aid or assistance in the commission of an internationally wrongful act
 
An international organization which aids or assists a State or
another international organization in the commission of an internationally
wrongful act by the State or the latter organization is internationally responsible
for doing so if:
 
(a) the former organization does so with knowledge of the
circumstances of the internationally wrongful act; and
 
(b) the act would be internationally wrongful if committed by that
organization.
 
Article 15
Direction and control exercised over the commission of an
internationally wrongful act
 
An international organization which directs and controls a State or
another international organization in the commission of an internationally
wrongful act by the State or the latter organization is internationally responsible
for that act if:
 
(a) the former organization does so with knowledge of the
circumstances
of the internationally wrongful act; and
 
(b) the act would be internationally wrongful if committed by that
organization.
 
Article 16
Coercion of a State or another international organization
 
An international organization which coerces a State or another
international organization to commit an act is internationally responsible for that
act if:
 
(a) the act would, but for the coercion, be an internationally wrongful
act of the coerced State or international organization; and
 
(b) the coercing international organization does so with knowledge of
the circumstances of the act.
18
 
 
Article 17
Circumvention of international obligations through decisions and
authorizations addressed to members
 
1. An international organization incurs international responsibility if
it circumvents one of its international obligations by adopting a decision
binding member States or international organizations to commit an act that
would be internationally wrongful if committed by the former organization.
 
2. An international organization incurs international responsibility if
it circumvents one of its international obligations by authorizing member
States or international organizations to commit an act that would be
internationally wrongful if committed by the former organization and the act
in question is committed because of that authorization.
 
3. Paragraphs 1 and 2 apply whether or not the act in question is
internationally wrongful for the member States or international organizations to
which the decision or authorization is addressed.
 
Article 18
Responsibility of an international organization member of another
international organization
 
Without prejudice to draft articles 14 to 17, the international responsibility
of an international organization that is a member of another international
organization also arises in relation to an act of the latter under the conditions
set out in draft articles 61 and 62 for States that are members of an international
organization.
 
Article 19
Effect of this Chapter
 
This Chapter is without prejudice to the international responsibility of
the
State or international organization which commits the act in question, or of any
other
State or international organization.
 
[…]
 
Part Four
The implementation of the international responsibility of an
international organization
 
Chapter I
Invocation of the responsibility of an international organization
 
[…]
Responsibility of International Organizations in Financial Partnerships
19
 
 
 
 
Article 47
Plurality of injured States or international organizations
 
Where several States or international organizations are injured by the
same internationally wrongful act of an international organization, each injured
State or international organization may separately invoke the
responsibility of the international organization for the internationally wrongful
act.
 
Article 48
Responsibility of an international organization and one or more States
or international organizations
 
1. Where an international organization and one or more States or
other international organizations are responsible for the same internationally
wrongful act, the responsibility of each State or organization may be invoked in
relation to that act.
 
2. Subsidiary responsibility may be invoked insofar as the invocation of the
primary responsibility has not led to reparation.
 
3. Paragraphs 1 and 2:
 
(a) do not permit any injured State or international organization
to
recover, by way of compensation, more than the damage it has suffered;
 
(b) are without prejudice to any right of recourse that the State or
international organization providing reparation may have against the other
responsible States or international organizations.
 
[…]
NYUSchoolofLaw•NewYork,NY10011